Justice After Transitions
by Jamal Benomar
Summary written by: Tanya Glaser, Conflict Research Consortium
Citation: "Justice After Transitions," in Transitional Justice, ed. Neil J. Kritz, (Washington, D.C.: United States Institute of Peace Press, 1995) pp. 32-41.
In many countries new democratic governments are coming to power, replacing older repressive regimes. The old regimes often have a history of human rights abuses. Transitional justice refers to the new government's attempts to address injustices perpetrated under the old regime. New governments face the difficult task of "achieving a just solution that is acceptable to a long-suffering population and that steers clear of both witch-hunt and whitewashes."[p.32]
Punishment or Reconciliation
Many people advocate prosecution and punishment as the best response to human rights abuses. They argue that the failure to prosecute such crimes amounts to a tacit endorsement. Prosecuting human rights abuses helps legitimate the new government. It demonstrates the new government's determination to adhere to democratic values and to respect human rights. Punishment will also deter future abuses. It will remove the worst elements from the old regime's remaining military and security forces. Prosecution of the abusers will also facilitate the victims' healing.
Others advocate a policy of amnesty and reconciliation. They note that prosecution has only worked in cases where the military has lost power. New democracies are usually fragile. Where the old regime's military is still powerful, attempts to prosecute its members may spark rebellion. In such cases a policy of amnesty and reconciliation is the best way to protect the new democracy. Moreover, in many cases both the opposition forces and the old regime were guilty of human rights abuses.
Benomar surveys a number of attempts to secure transitional justice. He examines the transition from communism in the former Soviet states, East Germany and Eastern Europe. These new governments must deal with widespread participation in the previous repressive regimes. Russia has made attempts to ban communist parties. Czech and Slovak lustration laws, which ban all members of the communist party from high office in the new government, have drawn international criticism. Such laws conflict with international norms, which reject notions of collective guilt. In Chile and Argentina the military forces remain strong, and civil governments have lacked the power to prosecute military leaders. However, these nations have made extensive investigations into past human rights abuses. Truth commissions have publicly revealed the nature and extent of past crimes. African states of Benin, Niger, and Togo have granted former leaders amnesty in order to facilitate a swift transition to the new government. After rebel forces defeated the old regime, the new government in Ethiopia has committed itself to prosecuting past human rights violations. To that end they have arrested thousands of military and security officers. The Ethiopian constitution recognizes the Universal Declaration of Human Rights as Ethiopia's supreme law.
Benomar argues that, given the complexity and variety of situations which new governments face, there can be no simple rules for implementing transitional justice. He notes that "the balance of power between the forces that represent the past and the democratic forces that lead the transition has proven to be the determining factor in the policy of many governments on this issue."[p. 41] Still, emerging democracies may learn much from the experiences of others.